THE NEW YORKER, MARCH 9, 2015
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free-enterprise system but thought that
the protection of nuclear weapons and
fissile materials was so important that it
should be handled by the federal gov-
ernment, not by private contractors.
During the second week of Sep-
tember, 2012, congressional hear-
ings were held to discuss the security
at Y-12. Representative Michael Tur-
ner, a Republican from Ohio, opened
one of the hearings by saying, "It is
outrageous to think that the greatest
threat to the American public from
weapons of mass destruction may be the
incompetence of D.O.E. security. . . .
This must never happen again." Sis-
ter Megan and Michael Walli attended
the hearings but were not asked to tes-
tify. Nevertheless, Representative Joe
Barton, a Republican from Texas, ac-
knowledged that Sister Megan was in
the audience. "Would you please stand
up, Ma'am?" he asked. "We want to
thank you for pointing out some of
the problems in our security." Repre-
sentative Edward Markey, a Demo-
crat from Massachusetts, addressed
Sister Megan directly: "Thank you for
your actions. Thank you for your will-
ingness to focus attention on this nu-
clear weapons buildup. . . . We thank
you for your courage. . . . You should
be praised because that's ultimately
what the Sermon on the Mount is
all about."
A federal grand jury had already
handed down further indictments. In ad-
dition to the misdemeanor trespassing
charge, the protesters now faced two felony
counts. The first was for "willfully and
maliciously"destroying property at Y-12.
The second was for committing a
"depredation against property of the
United States and of the United States
Department of Energy, National Nu-
clear Security Administration, Y-12
National Security Complex . . . in an
amount exceeding $1,000." To "depre-
date" means "to lay waste: plunder, rav-
age," according to Webster's.The felony
counts could lead to a prison sentence of
fifteen years. And, as lawyers represent-
ing the activists discussed a possible plea
bargain with the U.S. Attorney's O ce
in Knoxville, the government threat-
ened to file an even more serious charge:
sabotage.
Although the Sabotage Act was
passed in 1918, at the height of the
First World War, when America was
gripped with the fear of German spies,
the law has rarely been used against
people who've actually committed sab-
otage. Instead, it has been used against
labor organizers, opponents of the
Vietnam War, and anti-nuclear activ-
ists. The statute's broad definition of
sabotage---attempting or committing
an act with the "intent to injure, inter-
fere with, or obstruct the national de-
fense of the United States"---has made
the law a useful tool for punishing acts
of civil disobedience.
Walli, Sister Megan, and Boertje-
Obed refused to accept a plea bargain,
and insisted on a trial by jury. The
prosecution quickly dropped the tres-
passing charge and added sabotage to
the indictment.
William P. Quigley, the attorney rep-
resenting Walli, asked the judge to
throw out the sabotage charge. A pro-
fessor of law at Loyola University New
Orleans, Quigley argued that the sabo-
tage law was being selectively applied in
this case. Plowshares activists who had
committed similar nonviolent acts gen-
erally weren't accused of sabotage. Fa-
ther Bix had been given a three-month
prison sentence after breaking into the
nuclear-weapons storage area at Kitsap
in 2009. Sister Megan and the others
now faced a possible thirty-five years
behind bars.
Quigley was an expert on the "necessity
defense" and hoped to use it in the Y-12
case. Dating back centuries to English
common law, the defense enabled some-
one to be found innocent if a crime had
been committed to avoid a greater harm.
Crimes of necessity might include toss-
ing valuable cargo overboard to prevent
a ship from sinking, breaking into a
drugstore to obtain life-saving medicine
for someone in an emergency, shatter-
ing a store window to escape a fire. Sir
Walter Scott, who was a judge as well as
a novelist, believed that "necessity cre-
ates the law, it supersedes rules; and
whatever is reasonable and just in such
cases, is likewise legal."
The three activists had broken into
Y-12, Quigley planned to argue, in
order to avoid a nuclear holocaust.
He had defended peace activists since
the early nineteen-eighties and sym-
pathized with many of their views.The
necessity defense was occasionally suc-
cessful in state courts, where anti-
nuclear protesters had walked free after
explaining their actions to a jury. But
since the early nineties federal judges
have rarely permitted claims of necessity
to be used in civil-disobedience cases.
At a pre-trial hearing, Boertje-Obed,
representing himself, asked the court to
permit the use of the necessity defense.
The government had already submitted
a brief seeking to preclude that defense.
It would keep the jury from hearing ev-
idence about the morality of nuclear
weapons, international law, or the de-
fendants' political and religious beliefs.
The preparation for war crimes is a
crime, Boertje-Obed argued, citing one
of the Nuremberg principles used to
prosecute the leadership of Nazi Ger-
many. "So, when you build a nuclear
weapon, you are planning and preparing
to commit mass murder," he said. "You
are giving your assent to the killing of
civilians."
In response to those arguments, As-
sistant U.S. Attorney Je rey E. Theo-
dore, citing Justice John Paul Stevens,
portrayed all civil disobedience as anti-
democratic. It was "a form of arrogance
which organized society cannot toler-
ate." Theodore suggested that allow-
ing the necessity defense in this case
might justify its use by activists who
had blown up an abortion clinic. "These
defendants, they know," he told the
court. "They're all recidivists when it
comes to this. . . .They want to present
their anti-nuclear agenda and they
want the biggest forum they can get in
order to do that. And the more they
can espouse their views about opera-
tions at Y-12, or the horrors of nuclear
weapons and things like that . . . the
happier they are."
Judge Shirley forbade the use of the
necessity defense and let the sabotage
charge stand.
Walli, Boertje-Obed, and Sister
Megan didn't deny breaking into Y-12,
cutting the fences, and spraying gra ti.
At their trial, in May, 2013, they de-
scribed those actions matter-of-factly.
The charge of damaging government
property would be hard to beat.To obtain
a guilty verdict on the two other charges,
the government had to prove that repair-
ing the damage at Y-12 cost more than
a thousand dollars and that the three